Parent is Not Following Custody Agreement – Now What?

Parent is Not Following Custody Agreement – Now What?

A child or parenting order is a legally binding directive about the parenting arrangements of a child. According to our family lawyer in Vancouver, parenting orders can be court-imposed or court-approved consents. Parties to a parenting order must abide by the terms of such directives to avoid adverse legal consequences.

The scope of a child order can include, but is not limited to the following issues:

  • Which parent the child should live with;
  • How much time the parties to the order can spend with a child, including grandparents;
  • How parental responsibilities are allocated;
  • How the child can contact persons of interest besides the ones they live with; and
  • The child’s overall care, wellness, and development.

Children’s Best Interests

As per the Family Law Act—FLA, courts must prioritize the interests of children when issuing a parenting order. The FLA requires parents or potential guardians to meet specific conditions, including:

  • Assuming absolute responsibility for a child’s welfare until they attain the age of majority, and
  • Parents must collaborate for the best interests of the child or children.

Parenting orders are not subject to relationship changes, including separations, divorce, or remarriage. A parenting order can also include a dispute resolution mechanism to resolve potential disputes.

Parenting orders typically give equal rights to the parties named therein. Consequently, duties and crucial decisions require 50/50 input from both parties. Determining the best interests of a child or children is a two-tier consideration, including primary and additional considerations.

Primary Considerations

Primary considerations focus on:

  • The benefits children derive from meaningful relationships with both parents; and
  • A child’s protection or exposure to physical abuse, psychological harm, neglect, and violence.

Additional Considerations

Additional or secondary considerations include:

  • The attributes of the affected children, like maturity and how they understand issues.
  • The child-parent relationship.
  • The cooperation of the parents.
  • How changing circumstances like separation can impact a child’s welfare.
  • The potential communication and financial challenges that may hinder thriving relationships between children and parents.
  •  The financial capacity of both parents to cater to their child’s needs.
  • The maturity, gender, and background of the child and other persons of interest.
  • The right of children to enjoy their culture and how a parenting order may impact such rights.
  • The parent’s attitude to a child and the parenting order.
  • Any history of violence perpetrated by a family member towards the child.

Legal Obligations

Parenting orders are legally binding directives imposed by courts, as aforementioned. All parties are subject to the terms and conditions of child orders. Assuming parental rights comes at a cost. You must take actionable steps to put a child order into effect. Simply put, both parties must play an active role in putting the order in motion.

By law, parents or guardians must positively encourage children to comply with the child orders. In other words, you must not only help your child understand but also obey a parenting order. For instance, the child should be accessible at the appropriate time to people of interest named on the parenting order.

What Happens if You Don’t Follow a Child Arrangement Order?

If a court order is ignored, what happens? Failing to comply with a child order is an offence in British Columbia. However, non-compliance is subject to the alteration of a parenting order.

A court can’t penalize you for violating an altered or changed child order if another party accuses you of non-compliance. The family court has jurisdiction over parenting orders, regardless of the marital relationship.

This court handles parenting order violations. Failing to comply with a child order is considered contempt of court, which attracts adverse legal consequences. Any party to a parenting order can file legal action against the at-fault party for non-compliance.

Contempt of court can be civil or criminal, depending on the situation. Consequently, the applicable penalties for court contempt can vary by contempt type. The penalties for a parenting order non-compliance range from fines to community service and jail time.

Civil vs. Criminal Contempt of Court

Civil contempt of court occurs when personal rights are violated thanks to the contravention of a court order. In the context of a parenting order, civil contempt can result from failing to pay child support.

The punishments of a civil court contempt seek to sanction the at-fault party. They’re typically ordered to meet their end of the bargain for the sake of the child. Further non-compliance can attract a fine, indefinite jail time, or both.

Criminal Contempt of Court

Criminal contempt of court can arise if a person interferes with the course of justice in a judicial proceeding through their actions or otherwise. In the context of parenting order non-compliance, criminal contempt of court can attract a maximum fine of $500 or 120 days imprisonment or both.

Courts consider the following factors in determining a child order non-compliance:

  • The validity of the alleged contravention.
  • The circumstances surrounding the alleged contravention. Was it avoidable?
  • The seriousness of the alleged violation.

Penalties for non-compliance are imposed if the court establishes the validity of the alleged violation, devoid of a reasonable excuse. Besides the above-mentioned penalties, sanctions for a child order non-compliance can include:

  • Ordering the defendant to enroll in a post-separation parenting program.
  • Compensating the plaintiff for time wastage resulting from the violation.
  • Ordering the defendant to enter a bond.
  • Ordering the defendant to indemnify the plaintiff for the legal costs incurred when filing legal action.
  • Ordering the defendant to indemnify the plaintiff for any expenses resulting from the contravention.
  • Subjecting the defendant to community service.
  • Adjourning the case to allow the plaintiff to make a new parenting order application.

Parenting Order—Fathers’ Rights in British Columbia

In British Columbia, parents have legally-protected rights to participate, regardless of their marital status. These rights are recognized across the country but can vary by province.

The general rule is that unmarried fathers can enjoy equal rights to be involved in their children’s lives if they can successfully prove paternity. Child custody, parenting, and child support challenges can result from a change in marital status, like separation, remarriage, and more.

Unmarried mothers who assume absolute responsibility for a child are considered sole custodians by law. In the context of marriage, males are presumed to be the fathers of children if:

  • They married the child’s mother and assumed fatherhood after birth.
  • They lived with both mother and child after birth for more than one year after the child’s birth, and they acknowledged fatherhood.
  • They cohabited for at least a year but separated 300 days before the child’s birth.
  • They gave consent to be registered as the father under a provincial Act.

Paternity Rights and Forfeiture

Fathers have a right to participate in the lives of their children actively. However, this right can be forfeited under specific conditions. So, how long does a father have to be absent to lose his rights in BC?

The loss of paternal rights means the mother becomes the sole guardian of the child. As a father, a 6 months absence in your child’s life without a reasonable excuse is enough to warrant a paternity rights denial in British Columbia.

The paternal rights removal is initiated by the aggrieved party—the mother in many cases. However, this option is only considered in extreme cases. The court must consider how paternity rights removal will impact their lives.

Fathers looking to assert their paternal rights or have questions on paternity, child support, and child custody, should contact a lawyer from Gertsoyg and Company in British Columbia. Our lawyers will review your case, recommend an optimal legal solution, and ensure your constitutional rights are protected.

Child Custody and Child Visitation

The parties to a parenting order can have different rights regarding their children. However, both parents typically enjoy child custody and child visitation rights. While child custody and visitation are two distinct legal issues, they’re often confused and used interchangeably.

Child custody constitutes physical and legal custody of a child. In other words, child custody addresses the rights of a parent to reside with a child and make legal decisions for them. On the other hand, child visitations address the legal rights of a parent to visit or physically interact with their child from time to time. The terms and conditions of child visitation orders must be obeyed to avoid legal complications.

The terms of child visitations are agreed upon between the parents and approved by the courts. That said, these agreements are binding and actionable. Common violations of child visitations can include:

  • Time violations during visits.
  • Failing to disclose the child’s whereabouts to the other parent.
  • Visiting places or crossing the border with the child without the other parent’s consent.
  • Denying the other guardian their visitation rights.

Court Order For Visitation Non-Compliance

What happens if you don’t follow a court order for visitation? Child visitation and custody agreements are court-approved, meaning they’re binding and enforceable.

Failing to follow a court order for visitation is considered criminal contempt of court. The penalties for such violations include:

  1.  Jail time.
  2. Fines, or
  3. Loss of custody and parental rights.

How Can a Lawyer Help?

Child or parenting orders are binding and actionable court-approved directives regarding a child’s custody and welfare. Parenting orders commonly feature in changing marital relationships, such as divorce cases and remarriages.

If any party violates the terms and conditions of a parenting order, the aggrieved party can file legal action against them. Schedule a free legal consultation with a reputable family law firm for the best results.

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